A Tales of Two Courts

A Tale of two Courts

By Zsófia Végh

Hungary, in common with most states, has a judicial system where cases rise up through a pyramid, mostly starting in a district court and, if it gets that far, ending in an appeal to the Kúria (the Curia or Supreme Court) at the very top. The country also has a Constitutional Court, which ensures the country’s legislation is in keeping with the Fundamental Law, the formal name for the constitution. This article looks at how these two courts operate and, briefly, at areas of overlap.

The Curia

Since 2011, numerous changes have transformed the structure of the Hungarian court system. Currently, there are 158 courts in a four-tier hierarchy: district courts, administrative and labor courts, regional courts, regional courts of appeal and the Curia, or Supreme Court, at the top of the pyramid.

There are a total of 113 district courts. Appeals against decisions reached at these courts are heard by 20 appeal courts, which in certain cases act as the court of first instance. The Curia is the highest judicial authority of Hungary. It guarantees the uniform application of law, as its decisions are binding for other courts.

The responsibilities of the Supreme Court are varied, ranging from the examination of appeals submitted against the decisions of county courts and regional courts of appeal, to the review of final decisions if these are challenged through an extraordinary remedy.

The Curia adopts so-called “uniformity decisions,” which are binding on all other courts. It hears and determines uniformity complaints, and analyses final

THE HISTORY OF THE CURIA

As with so much else at Hungary’s rebirth as a free and democratic state, the Curia underwent major reforms from 1989 onwards, but its history long predates that point. The Curia at the time of the regime change was built upon an institution that was in place (albeit working under a very different constitution and legal system) from 1948, when the communists set up their single party state.

But a line can be traced back beyond that, to Article 2 of Act LIX of 1881, which merged two departments (known as “royal tables”) into one body as from January 1, 1882: “With regard to the jurisdiction of both royal tables, the highest judicial authority is hereby vested in the Royal Hungarian Curia in Budapest.”

Even that name was not new, though. Act LIV of 1868 declared that “the highest legal authority as regards the whole jurisdiction of the two royal courts of appeal would rest with the highest court under the name ‘Royal Hungarian Curia’ located in Pest.” As the Curia’s fascinating (if somewhat clunky) English language history section (lb.hu/en/history-and-judicial-reform) makes clear, the antecedents go back even further yet.

“Based on the development of law of earlier centuries, Act XXV regulated the position of the Royal Court of Appeal led by the Chief Judicial Representative, which had its first session on May 2, 1724. The Curia, made up of two forums, the Table of Seven and the Royal Table (or the Royal Court of Appeal), was turned into a permanent court working in Pest independently of the royal court, though it did not meet regularly until the reign of Joseph II,” it says.

Continue back beyond that and the history becomes hazier as it grows older, but the website makes a brave effort at establishing a link with the country’s King-Saint founder, István (Stephen).

“With his codes the king – as the prominent person of supreme jurisdiction – laid down the foundations of a thousand-year-old development of the legal system.”

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decisions to examine and explore judicial practice. It passes decisions in cases where local government decrees violate legal rules and in cases where the local government fails to legislate as laid down in the act on local governments. It also carries out other duties assigned to it by law.

WORKING GROUPS Under the authority of its president (for more on the current incumbent, see below), the Curia has three departments: criminal, civil and administrative-labor law. Each department has various chambers that hear appellate cases, pass uniformity decisions, and issue decisions on principles. They also have working groups examining judicial practice.

The principle of legal certainty is an important element of the rule of law in Hungary. Its requirement in court proceedings means that the courts shall, in the course of their judgments, reach decisions that are the same, or at least similar in content, in matters of the same facts regardless of which type of court the case is heard in, or whether the judgment was given at the first or second instance.

Another responsibility of the Curia is to analyze the law itself. To ensure the harmonization of the administration of justice within the Hungarian judiciary, the Supreme Court operates jurisprudence-analyzing working groups. These look at practices in the administration of justice and prepare non-binding summary opinions, which are discussed by the competent college of the Curia. If the college agrees with the working group’s findings,

THE PRESIDENT OF THE SUPREME COURT

As of January, the Curia has a new president, András Zs. Varga. A judge and head of panel of the Curia since 2020, he was formerly a Justice of the Constitutional Court from 2014.

The conditions of his appointment, the result of various amendments of law pushed through using the overwhelming majority enjoyed by the Fideszled government, caused serious political and legal turmoil. The European Commission even went as far as expressing its concerns about the changes. The new president has addressed some of these issues at several forums since his inauguration.

“We have to function as a Curia whose justices, as judges of the superior court of Hungary enjoying great authority, are able to harmonize the detailed dogmatic considerations necessary for the determination of the individual cases with the general requirement of enforcing the Fundamental Law,” he told the Curia itself.

“The Curia is not an abstract institution, not a building or a judicial administrative office,” he added. “The Curia is us: it is you, my honorable fellow justices and, as one of the justices, it is the President of the Curia.”

Varga said he wishes to strengthen cooperation among the various fields of law. He stated that he would defend the authority, autonomy and independence of Hungary’s judiciary, stressing that the judge must be independent of everyone, all other institutions and organizations, because the idea of impartiality requires it so.

He said that he is committed to the separation of the tasks related to the president’s administrative duties and the Curia’s external representation, including the separation of the organizational units supporting the various areas.

Recent presidents of the Curia include Pál Solt, who served from the time of the change of the regime, Zoltán Lomnici, who had to prepare the Curia for the adoption of the law of the European Union when Hungary joined the bloc, and Varga's immediate predecessor, Péter Darák, who served from when the new Fundamental Law was adopted.

Photo by posztos / Shutterstock.com

András Zs. Varga

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Another somewhat controversial element of this is that the Constitutional Court in general is supposed to defend the “weaker” against the “stronger” party. But the introduction of this allowance gives another tool to the “stronger” party. Elaborate regulation may help to clarify this, but at this point it is not sufficiently detailed, experts say.

a summary opinion will be published. One of the most important results of the work of these groups is their ability to draw attention to problems that may even lead to the initiation of a legal uniformity procedure or the initiation of legislation. The topics to be investigated are determined annually by the president of the Curia.

Constitutional Court

The Constitutional Court of Hungary (or Magyarország Alkotmánybírósága as it is in Hungarian) is not actually part of the judicial system, but reviews the constitutionality of laws and court decisions.

It has various competences including the ex-ante review of conformity with the Fundamental Law (preliminary norm control), ex post review of conformity with the Fundamental Law (posterior norm control), judicial initiative for norm control in concrete cases, and reviewing constitutional complaints. It may also look at or review the interpretation of the Fundamental Law and give its opinion.

The current version of the Fundamental Law took effect in January 1, 2012. Since then, no major changes have been introduced that would affect the overall operation of the Constitutional Court, bar a few exceptions.

One, introduced in December 2019, allows for public authorities to submit a constitutional complaint. Prior to that, only natural persons (or a legal person if from the private sector) could make such a submission. Now, however, public bodies such as local authorities, the National Bank of Hungary or the Procurement Office can also initiate a complaint if they feel their right to due process was hurt.

In itself this practice is not entirely new, in the sense that it can be found in other countries as well. What may pose some questions is how carefully it is regulated; for example, exactly what entities can turn to the court and with what complaints?

Another somewhat controversial element of this is that the Constitutional Court in general is supposed to defend the “weaker” against the “stronger” party. But the introduction of this allowance gives another tool to the “stronger” party. Elaborate regulation may help to clarify this, but at this point it is not sufficiently detailed, experts say.

REVIEW One competence of the Constitutional Court it that it can review bills before they are passed. The National Assembly (parliament) and the Head of State can initiate the review of a bill before it comes into effect, but due to the majority of members of parliament belonging to the governing coalition of Fidesz and the Christian Democrats, there is rarely a case when parliament does so; the second option is more frequent.

Until 2012, the Constitutional Court was mainly responsible for the ex post review of laws from a constitutional viewpoint (or their conformity with the Fundamental Law). If a citizen found that the law violated some basic right they could initiate its review.

Now, however, this procedure can be initiated by a smaller circle that includes the president of the Curia, Hungary’s supreme court (see earlier section on the Curia), the Fundamental Rights Commissioner, the General Attorney, the government, and a quarter of MPs.

With this change, the emphasis shifted towards concrete, unique cases. Today, if someone finds that a judicial decision or interpretation violates the Fundamental Law (rather than the law itself), they can submit a constitutional complaint.

A judge can also decide that the law he or she is supposed to use does not conform with the Fundamental Law and turn to the Constitutional Court, which will review the law in question. Another area where a challenge can be submitted is when a new law takes effect and, based on that, the Constitution is violated.

The court also has an abstract legal review (interpretation) function and this, too, can be initiated by a narrow circle. For example, the Fundamental Law declares that Hungary is a democratic state and the government or the Head of State may ask the court to review how that is implemented or manifested regarding a concrete constitutional issue.

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BETTER OR WORSE? Whether the changes implemented from 2012 have made the system better or worse is a matter open to debate. Overall, it represents a shift in approach. Prior to 2012, the basis was that system-level issues with the constitution could be filtered out more effectively and they got to the court more rapidly, which was supported by the fact that a wider circle could initiate a proceeding. (This, however, also meant that a lot of motions were less “serious”, for example a claim to the right to have free beer.)

With the shift to unique cases, questions of real legal significance have a harder time getting in front of the Constitutional Court as they usually come up during the lawmaking process. There are fewer instances for the review of a law, although this is where the court could have the opportunity to look at constitutionality from a wider scope.

The 15 members of the Constitutional Court are elected by parliament. The procedure for the election of judges is set out in the Act on the Constitutional Court. A nominating committee proposes the candidates. That committee consists of at least nine and at most 15 MPs, nominated by the parliamentary factions of the parties represented in Parliament; at least one representative from each faction must be included.

Candidates to be a member of the Constitutional Court must be Hungarian citizens with no criminal record, have a legal degree, be at least 45 years of age but not more than 70. They should have formidable knowledge of the theory of law (as, for example, university professors or doctors of the Hungarian Academy of Sciences), or have at least 20 years of professional work experience in a field of law that requires a degree in law.

Those who have been a member of the government or a leading official in any political party or have held a leading state official post in the four years prior to election are disqualified from becoming a member of the Constitutional Court.

Their mandate means they are unable to hold any other position in state or local government administration, in society, or with any political or economic organization, except for positions directly related to scientific activity or higher education, providing that this does not interfere with their work.

Once they take the oath and the office, they may not engage in any gainful occupation other than scientific, teaching, artistic, proofreading, editorial and intellectual activities falling under intellectual property rights protection.

With grateful thanks to the experts of the Institute for Legal Studies of the Center for Social Sciences at the Hungarian Academy of Sciences Center of Excellence (TKJTI) for their assistance in preparing this summary.

THE HISTORY OF THE CONSTITUTIONAL COURT

Most legal establishments have long antecedents, but Hungary’s Constitutional court is a relative newcomer. According to the court’s English language website (hunconcourt.hu), the decision to form the body was taken by parliament in January 1989, around the time of the change in regime from the communist single party state to a free democracy. The actual structure and competences were decided upon later, however, during the trilateral political negotiations that oversaw the transfer of power. Accordingly, parliament amended the constitution in October 1989 by inserting Article 32/A adding the requirement for the Constitutional Court. Act XXXII of 1989 on the Constitutional Court was adopted on October 19, 1989 and entered into force on October 30. On November 23, 1989, parliament elected the first five judges of the court, which started operations on January 1, 1990. Five additional members were elected by the freely elected Parliament in the mid-1990s. According to the website, “The Constitutional Court had an important role in the new democracy: it was one of the guarantees of the rule of law by practicing constitutional review of laws.”

Overlaps Between the Courts

The Curia reviews courts’ decision from a legal and factual perspective, and has the right to overrule them should the given court be deemed not to have used the appropriate law when making its ruling. It can also change the decision of the court, whereas the Constitutional Court may only give its opinion and state that something was not constitutional.

The Constitutional Court reviews laws and decisions from a constitutional viewpoint.

Although the Curia may have some impact on law making, for example, through the opinion of its president or indirectly via judicial practice, its “main” role as part of the overall system is the administration of justice (igazságszolgáltatás).

The Constitutional Court has greater bearing on the law-making process, as it has a controlling function and its competences to review laws also has an impact on this process.

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